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E-FILEI) 
IN COUNTY CLER< 
PIERCE COUNTY, v)// 

March 27 2013 

KEVIN ST(b( 
COUNTY C .! 

NO: 1 3-2-0; '( 



IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 
IN AND FOR PIERCE COUNTY 



CITY OF LAKEWOOD, 






No. 


Plaintiff, 






PETITION FOR JUDICIAL REVIEW, 


Vs. 


PETITION FOR WRIT OF REVIEW 




AND COMPLAINT FOR 


STATE OF WASHINGTON, 


DECLARATORY RELIEF 


DEPARTMENT OF TRANSPORTION, 




Defendant. 





The City of Lakewood pleads as follows: 



I. JURISIDICTION AND VENUE 

1.1 This Court has jurisdiction pursuant to chapter 43.21C RCW (State 
Environmental Policy Act), chapter 7.24 (Declaratory and Injunctive Relief), chapter 7.16 
RCW (Statutory Writ of Certiorari); and the inherent power of the judiciary under Article 
IV, Section 6 of the Washington State Constitution. 

1 .2 Venue is proper in Pierce County pursuant to RCW 4. 12.025. 

II. IDENTIFICATION OF THE PARTIES 
2.1 Petitioner is the City of Lakewood, a Washington municipal corporation. 
The City's mailing address is: 6000 Main Street, Lakewood, Washington 98499. It is 
represented by the undersigned counsel whose address is also the same. The City of 
Lakewood is an optional code city organized under Title 35A RCW. As such, it also 
possesses all powers of first class cities. See, RCW 35A. 11.020, .050. 

Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 1 of 9 



City of Lakewood 

Legal Department 
6000 Main Street S.W. 
<=^LjOi?eWOOCt Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 




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2.2 Respondent is the State of Washington Department of Transportation 
(WSDOT). Its headquarters office is located at 310 Maple Park Ave., SE, Olympia, WA. 
III. AGENCY DECISION UNDER REVIEW 

3.1 The City of Lakewood seeks review and challenges the March 13, 2012 
Determination of Nonsignifiance and Adoption of Existing Environmental Documents 
(DNS) by WSDOT which adopted a Finding of No Significant Impact (FONSI) 
following an Environmental Assessment (EA) dated March 1, 2013 of the project 
commonly known at the Point Defiance Bypass. 

3.2 A true and correct copy of the DNS is attached hereto. A copy of the 
FONSI and the EA are maintained by the WSDOT on-line at 
http://www.wsdot.wa.gov/projects/rail/pnwrc _ptdefiance/. 

IV. BACKGROUND FACTS 
A. The City of Lakewood and the Tillicum Neighborhood . 

4.1 Located on the southern side of the City of Lakewood, Tillicum has a rich 
history and many unique landmarks. At one time, it was a vibrant vacation destination. 
Tillicum also provided much-needed housing for soldiers and their families during World 
Wars I and II. Unfortunately, the replacement of old Highway 99 with a limited access 
freeway in the 1950s severed Tillicum from the rest of the community, leaving it isolated 
and distinctly separate from other urban and suburban areas. Redevelopment 
opportunities dwindled in part because of new environmental regulation introduced in the 
1970s as well as an inability of county government to adequately address Tillicum' s 
urban problems. As a result, property values diminished and crime became a chronic 
issue. 

4.2 Together the Tillicum neighborhood and its adjoining neighborhood of 
Woodbrook serve a population of 4,754. However, there are unique characteristics of this 
population that make it different from other Lakewood neighborhoods. Forty eight 
percent are non-English speaking, 78 percent of the total households are renter-occupied, 
and 90.9 percent of elementary children and 67.4 percent of middle school children are 
on free and reduced lunches. 

Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 2 of 9 



City of Lakewood 

Legal Department 
6000 Main Street S.W. 
<=^LjOi?eWOOCt Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 




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4.3 Access to the City of Lakewood's Tillicum neighborhood is limited. There 
are only two vehicle -based ways in and out of Tillicum. Both are along Interstate 5. The 
first is Exit 122 which grants access via Berkley Street. The other way into the 
neighborhood is via Exit 123, the Thorne Lane Exit. American Lake is located directly to 
the north/northwest of Tillicum. Presently, the Tacoma Country Club and Golf Course 
precludes access from Tillicum to the rest of the City. In order to gain access to the 
neighborhood all vehicles must cross the railroad tracks here. 

4.4 The City of Lakewood incorporated in 1996. Since incorporation, the City 
has continuously worked to improve the quality of life for all of its citizens, including 
Tillicum residents. The City has been awarded grants and had received loans to finance a 
portion of the cost of extending sewer services to Tillicum which in turn has encouraged 
economic development and revitalization in the neighborhoods of American Lake 
Gardens and Tillicum. The City has also dedicated significant law enforcement resources 
and has successfully lowered crime rates in Tillicum. The City has made housing 
investments and engaged in community partnerships through such groups as Habitat for 
Humanity. Moreover, the City has invested considerable resources toward improving the 
public works infrastructure in Tillicum through new and improved roadways, curbs, 
gutters and sidewalks. 

4.5 Beyond physical features, Tillicum enjoys a strong sense of community. 
Long-time residents who live there remember Tillicum for what it was, they believe in its 
future, and they are committed to positive change for the area. 

4.6 As part of the City's long-range planning process, in accordance with the 
Growth Management Act, the City has adopted a Comprehensive Plan. In conformity 
with the GMA and RCW 47.79.030, multiple sections of the Comprehensive Plan explore 
and discuss railway traffic. The City's Comprehensive Plan was originally approved by 
the Lakewood City Council via Ordinance 237 in July 2000 and is reviewed periodically. 

4.7 The Point Defiance Bypass Project threatens to destroy progress made in 
this neighborhood. It is also at odds with the City of Lakewood Comprehensive Plan 
together with other community vitalization plans developed by the City. 

Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 3 of 9 



City of Lakewood 

Legal Department 
6000 Main Street S.W. 
<=^LjOi?eWOOCt Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 




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B. The Point Defiance Bypass Project 

4.8 Located in the City of Lakewood are a series of railroad tracks owned by 
Sound Transit and/or Burlington Northern- Santa Fe (BNSF). These tracks, whose 
installation reach back to the late 1800's, currently consist of seven at-grade crossings 
with City streets. Four of these crossings are currently in use for daily Sound Transit 
Sounder trips between Lakewood and Seattle. Two of the remaining three at-grade 
crossings are in Tillicum. Aside from daily Sounder trips, these rails are used no more 
than twice a week, and often at night and at low speeds for freight. 

4.9 WSDOT proposes to implement an infrastructure improvement project 
which affects Lakewood. This project, commonly known as the Point Defiance Bypass 
proposes to reroute Amtrak service from its current route along Point Defiance through 
the rails in Lakewood. 

4.10 To accomplish these improvements, components of this project include the 
construction of new rails, ties and ballast on existing track in Lakewood. 

4.11 When complete, the Point Defiance Rail Bypass project will bring a total 
of twelve daily round trip passenger trains through Lakewood, with a maximum speed of 
79 mph. These trains will not serve the City, only pass through. 

C. The WSDOT Attempted to Implement the Project Without an 
Environmental Assessment . 

4.12 The DNS follows a process implemented pursuant to an earlier challenge 
by the City. That challenge occurred in administrative proceedings before the 
Washington Utilities and Transportation Commission in 2010. In several consolidated 
proceedings, WSDOT sought to modify the railroad at-grade crossings at four Lakewood 
intersections, one in DuPont and one on Joint Base Lewis-McChord. 

4.13 In those proceedings, the Rail Engineering Manager of the WSDOT's 
State Rail and Marine Office acknowledged in pre-filed written testimony that the project 
was then-funded with nearly $97 million in State funds and over $3 million in federal 
highway funds originally appropriated by the Washington State Legislature in 2003 with 
additional funds appropriated in 2005 and 2007. Due to then-existing economic 

Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 4 of 9 



City of Lakewood 

Legal Department 
6000 Main Street S.W. 
<=^LjOi?eWOOCt Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 




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conditions, and in the absence of the federal American Recovery and Reinvestment Act 
of 2009 (ARRA) grant monies discussed below, the project's spending plan would not 
allow the second phase of construction to begin until July 2013 at the earliest and would 
delay completion until 2019. However, in February 2010, the Federal Railway 
Administration (FRA) announced that the State of Washington was to be awarded $590 
million in ARRA funds to increase the intercity passenger rail service between Seattle 
and Portland. On information and belief, total ARRA funds awarded to the State of 
Washington totaled approximately $781 Million. The Point Defiance Bypass Project is 
one of the projects required to meet the goals of the grant. 

4.14 The manager further acknowledged that as part of evaluating this project 
under the National Environmental Policy Act (NEPA), both WSDOT and the Federal 
Highway Administration (FHWA) jointly determined that the Point Defiance Bypass 
Project was categorically excluded from NEPA. Because of this categorical exclusion 
under NEPA, neither an Environmental Assessment (EA) nor an Environmental Impact 
Statement (EIS) was required. 

4.15 Despite WSDOT's publicly available statements that neither an EA nor an 
EIS was available, in Fall 2010, FRA verbally notified WSDOT that with the granting of 
FRA funds, FRA would require WSDOT to follow FRA's National Environmental 
Protection Act (NEPA) protocol. At the same time, FRA stated that, under FRA's 
Environmental Procedures implementing NEPA, the appropriate project-level 
environmental documentation is an environmental assessment (EA) rather than a 
categorical exclusion (CE). 

4.16 As a result of the grant of FRA funds, these administrative proceedings 
were dismissed without prejudice. 

D. Only Upon Receipt of Federal Dollars Did WSDOT Undertake the EA 

4.17 On or about March 1, 2013, WSDOT issued the Point Defiance Bypass 
Project Environmental Assessment (EA). As the EA itself makes clear, the EA was 
conducted, "[t]o support the obligation of grant funds for the [Pacific Northwest Rail 
Corridor] improvement program, FRA and WSDOT issued a Tier-1 Programmatic EA 

Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 5 of 9 



City of Lakewood 

Legal Department 
6000 Main Street S.W. 
<=^LjOi?eWOOCt Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 




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analyzing the potential impacts of the projects comprising the PNWRC Program." (Id. at 
p. vii). 

4.18 The EA and resulting FONSI, however, miss the point and suggest that 
this process has not been substantive, failing to address developmental standards, public 
safety, and socioeconomic justice factors. The EA is also factually incorrect. Specific 
statements in the FONSI makes clear that this was merely a bureaucratic exercise: 

• "The Build Alternative would not cause a direct change in the 



few neighborhoods during train pass-bys, which would be very short in 
duration. However, overall the Project would result in more intersections 
with delay decreases than delay increases. Therefore, with the Project and 
the proposed traffic improvements, community connectivity would 
experience a minor benefit." 

• "The Project is not anticipated to affect property values." 

E. Current Status. 

4.19 After issuance of the FONSI and before it completed the issuance of the 

DNS, WSDOT has expressly - and publicly - represented as follows: 

WSDOT's project team will advance design work to reroute passenger 
trains from the BNSF Railway main line near Point Defiance to an 
existing, and less congested, rail line that travels through south Tacoma, 
Lakewood and DuPont. WSDOT expects construction to begin in 2015 
and open the new route to service in 2017. 

Amtrak Cascades One Step Closer to Faster, More Frequent Service, 
http://www.wsdot.wa.gov/News/2013/03/04 point defiance bypass FONSI issued.htm 
(Last Visited: March 27, 2013). 

4.20 Meanwhile other divisions within WSDOT are providing contradictory 
information relating to some would-be mitigation, with a particular emphasis on grade 
separation at the Thorne Lane Intersection. On August 3, 2004 the environmental Record 

Petition for Judicial Review, Petition for ^ - — City of Lakewood 



demographics, land use patters, neighborhoods or other related community 



characteristics. 



Operation of the Project may increase residents' feelings of isolation in a 



Writ of Review and Complaint for 
Declaratory Relief 
Page 6 of 9 




(253) 589-2489 FAX (253) 589-3774 



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of Decision was issued by Federal Highway Administrative making WSDOT the lead 



agency on the Cross-base Highway (SR 704) project. The Record of Decision expressly 

contemplates grade separation, 

The existing Thorne Lane interchange would be relocated 300 feet 
southwest and reconstructed to accommodate additional traffic, pass over 
the Burlington Northern Santa Fe (BNSF) railroad tracks southwest of 1-5, 
and connect to a new SR 704 single-lane southbound connector road 
southwest of the BNSF railroad tracks between Gravelly Lake Drive and 
Thorne Lane (Gravelly-Thorne Connector). 

Record Of Decision Federal Highway Administration State Route 704 (Cross-Base 
Highway) Fhwa-Wa-Wa-Eis-98-3-F Pierce County, Washington, available on-line at 
http://www.wsdot.wa.gov/NR/rdonlyres/41C31B48-5019-4B93-984A- 
FFC27DC55D93/0/Cross Base Rod AUG 2.pdf (Last Visited: March 26, 2013). 



5.1 First Cause of Action - Judicial Review Under SEPA . The actions 
described herein constitute a violation of the State Environmental Policy Act, chapter 
43.21C RCW, and the implementing regulations, chapter 197-11 WAC to which the City 
is entitled to judicial review pursuant to RCW 43.21C.075. SEPA imposes upon each 
public agency in the State of Washington the duty to fully consider environmental 
impacts of certain decisions. WSDOT violated SEPA by issuing a DNS when which was 
not based on sufficient or adequate information with respect to a number of impacts. 
WSDOT further erred when it failed to require sufficient or adequate mitigation showing 
compliance with certain requirements of SEPA. WSDOT additionally erred when it 
concluded that the impacts associated with the project to the City of Lakewood and its 
citizens will be adequately mitigated. No meaningful mitigation is proposed. Moreover, 
WSDOT compounded these errors by providing a public statement post-EA which was at 
odds with the EA, thereby engaging in arbitrary and capricious conduct. Petitioner asks 
that this Court hold that WSDOT violated SEPA, its implementing regulations and policy 
when issuing the DNS. 

5.2 Second Cause of Action - Declaratory Relief . WSDOT does not account 
for the power and authority conferred upon the City of Lakewood by operation of law. 

Petition for Judicial Review, Petition for ^ - — City of Lakewood 



V. CLAIMS FOR RELIEF 



Writ of Review and Complaint for 
Declaratory Relief 
Page 7 of 9 




(253) 589-2489 FAX (253) 589-3774 



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None of the environmental documents meaningfully account for the City's regulatory 
authority under its Comprehensive Plan promulgated under the Growth Management Act 
or other statutes. In fact, contrary to the mandates of both RCW 36.70A.103 and RCW 
47.79.030, WSDOT reviewed the City of Lakewood's Comprehensive Plan in a cursory 
manner failing to account for rail-specific goals and policies and their relationships with 
surrounding neighborhoods. WSDOT also fails to account for the City's regulatory 
authority under RCW 35.22.340. In view of the concerns outlined in the preceding 
paragraphs, there exists a genuine dispute regarding a controversy, the judicial 
determination of which will have the force and effect of a final judgment, for which the 
City of Lakewood is entitled to relief under the Uniform Declaratory Judgments Act 
(UDJA), chapter 7.24 RCW adjudicating its rights under state law vis-a-vis the WSDOT. 

5.3 Third Cause of Action - Petition for Writ of Review . If the decisions are 
not subject to review under either UDJA or SEPA, the City of Lakewood has no adequate 
remedy at law to seek review of the decisions at issue and, pursuant to Civil Rule 8(e)(2), 
the City pleads in the alternative that review is proper pursuant to a writ of review issued 
under either chapter 7.16 RCW or Article IV, Section 6 of the Washington State 
Constitution. 

PRAYER FOR RELIEF 

WHEREFORE, the City of Lakewood prays that this Court grant the following 

relief: 

A. An order declaring that WSDOT' s actions in issuing the FONSI and DNS 
are "actions," under SEPA and were made in violation of SEPA; 

B. An order declaring the DNS and FONSI void; 

C. Such injunctive relief whether styled at temporary, preliminary or 
permanent as the Court deems appropriate; 

D. For an award of costs and attorney fees as may be allowed by law; and 



Petition for Judicial Review, Petition for ^? „- n » City of Lakewood 

Writ of Review and Complaint for C-rf^ of Legal Department 

Declaratory Relief P I "*sfc? / 6000 Main street s.w. 

PAGE 8 OF 9 <=^LxM?eU>OOCl Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 



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E. For other such relief as deemed just, jsguitable^and proper. 
DATED: March 27, 2013. 




Matthew S. Kaser, WSBANo. 32239 
Acting City Attorney 



Petition for Judicial Review, Petition for 
Writ of Review and Complaint for 
Declaratory Relief 
Page 9 of 9 



^ //""^ CITY OF LAKEWOOD 
C^ity "f Mit+tl Legal Department 
O I I 6000 Main Street S.W. 

c^LakeWOOCl Lakewood, Washington 98499 

(253) 589-2489 FAX (253) 589-3774 



Washington State 
Department of Transportation 



DETERMINATION OF NONSIGNIFICANCE 
AND ADOPTION OF EXISTING 
ENVIRONMENTAL DOCUMENTS 

March 13, 2013 

Description of current proposal: The proposed project consists of railroad track and support facility 
improvements to facilitate rerouting Amtrak's intercity passenger rail to the Point Defiance Bypass route 
and relocating the existing Tacoma Amtrak Station. Specific actions include: 

• Constructing new track adjacent to the existing main line from South 66th Street in Tacoma, to 
between Bridgeport Way Southwest and Clover Creek Drive Southwest in Lakewood; 

• Reconstructing and rehabilitating the existing main line from just southwest of Bridgeport Way 
Southwest in Lakewood, to a location southeast of the Interstate 5/Mounts Road Southwest 
interchange at Nisqually Junction; 

• Improving several grade crossings within the proposed project area, and; 

• Relocating the existing Tacoma Amtrak Station from its current Puyallup Avenue location, to the 
Tacoma Dome Station at Freighthouse Square in Tacoma. 

Proponent: Washington State Department of Transportation 

Location of current proposal: The proposed project is located within the incorporated and 
unincorporated areas of Pierce County along an existing approximately 20-mile rail corridor between 
Tacoma and Nisqually that generally parallels and is west of the Interstate 5 (I-5) transportation corridor. 
The northern limit of the proposed project is TR Junction near the I-5 overcrossing of the Puyallup River 
and East Bay Street in Tacoma. The southern limit of the proposed project is at Nisqually Junction where 
Nisqually Road crosses the Nisqually River. 

Title of documents being adopted and relied on: Point Defiance Bypass Project National 
Environmental Policy Act (NEPA) Environmental Assessment (EA); NEPA Finding of No Significant 
Impact (FONSI); SEPA Environmental Checklist. 

Date adopted documents were prepared: 

• NEPA Environmental Assessment: February 22, 2013 

• NEPA Finding of No Significant Impact: March 1 , 201 3 

• SEPA Environmental Checklist: March 13, 2013 

Description of documents (or portion) being adopted: The Point Defiance Bypass Project NEPA 
Environmental Assessment and NEPA Finding of No Significant Impact are being adopted in their 
entirety. Staff also prepared a document using the SEPA checklist to show where each topic is addressed 
in the NEPA documents. Where the SEPA checklist contains questions not specifically addressed in the 
NEPA EA, additional information is provided. The SEPA checklist will circulate with this notice. 

The documents are available electronically: At the project website 
www.wsdot.wa.gov/proiects/rail/pnwrc ptdefiance/ 

The Compact Disk (CD) containing the NEPA documents and their appendices is available at no cost by 
contacting the State Rail and Marine Office at (360) 705-7900. 

Hard copies can be viewed at WSDOT's Headquarters Building, 310 Maple Park Avenue SE, Olympia, 
WA 98501 , Monday through Friday between 8 am and 4:30 pm. 

Public and Agency Review: 

The scope of the environmental review was determined by FRA and WSDOT after considering input from 
the public and agencies. Chapter 5 of the EA summarizes the public outreach as well as local 
government and tribal consultation efforts conducted for the Project between spring 2010 and fall 2012. 
Coordination efforts included input from technical and executive advisory team meetings and direct 
agency interaction. 




The EA was issued by FRA and WSDOT for public review on October 9, 2012 for a period of 30 calendar 
days (comment period closed on November 9, 2012). WSDOT mailed notices of public meetings to 
27,000 residents within a quarter mile of the proposed project. WSDOT translated notices in four 
languages to reach non-English speakers. During the comment period, the public was invited to provide 
input through various methods, such as a written comment form, court reporter, e-mail, and mail. WSDOT 
and FRA explained that both agencies would review and respond to all comments received during the 30- 
day EA comment period. The joint agency response to the 62 comments received is contained in the 
environmental decision document issued by FRA (FONSI Appendix B). 

WSDOT is relying on the NEPA documentation and concurs with the findings contained in the Federal 
Rail Administration's decision document. The lead agency for this proposal has determined that it does 
not have a probable significant adverse impact on the environment. An environmental impact statement 
(EIS) is not required under RCW 43.21 C.030(2)(c). 

As described in the EA and FRA's decision document, an EIS is not required because the construction 
and operation of the project will not significantly harm the environment. The adopted documents show 
that the project would improve travel time of the Amtrak Cascades service, decrease train delays, and 
allow more frequent and reliable intercity passenger rail along the corridor. The project would also 
improve the safety of at-grade crossings and nearby intersections, adding way-side horns, median 
barriers, sidewalks, pre-signals, and more advanced signal controllers. Upgrades to intersections and 
signaling would maintain or improve overall traffic flow at existing substandard intersections. Relocating 
the Tacoma Avenue Amtrak Station to Freighthouse Square would improve multimodal connections. 
WSDOT and FRA considered the project's effects on low-income and minority populations and 
determined that there is no disproportionately high or adverse effect, and that the project meets the 
provisions of Executive Order 12898 and Title VI of the Civil Rights Act. 

WSDOT has identified and adopted these documents as being appropriate for this proposal after 
independent review. These documents meet WSDOT's environmental review needs for the current 
proposal and will accompany the proposal to the decision maker. 

If the documents being adopted have been challenged (WAC 197-11-630), please describe: The 

documents have not been challenged. 

This DNS is issued under WAC 197-1 1-340(2); the lead agency will not act on the proposal for 14 days 
from the date on which this DNS is being issued. Comments can be sent to rail@wsdot.wa.gov or mailed 
to WSDOT Rail Office, P.O. Box 47407, Olympia, WA 98504-7407 

Comments must be submitted by March 26, 2013. 



Name of agency adopting documents: Washington State Department of Transportation 

Responsible official: Megan White, PE 

Position/title: Director, WSDOT Environmental Services 

Phone: 360-705-7482 

Address: 310 Maple Park Avenue SE Olympia, WA 
Date: March 13, 2013 




Contact person, if other than responsible official: Carol Lee Roalkvam (360) 705-7126